Criminal Background Checks

By Laura Klepacki

The use of criminal background checks by employers is being closely watched.

Concerns that convictions among African Americans and Hispanics were causing hiring discrimination, the Equal Employment Opportunity Council has issued new guidelines regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. According to the Pew Center on the States 2010 study, while one in every 87 white men in America have been incarcerated, among Hispanics it is 1-in-36 and blacks it is 1-in-12.

Some experts say that abiding by the updated guidelines can be tricky for retailers. Thomas L. McCally, a labor attorney at Carr Maloney in Washington, D.C, described the 57-page document as "clear as mud" in a presentation during the National Retail Federation Convention's 102nd Convention & Expo in New York City.

McCally stressed that the new guidelines present suggestions, and not rules or regulations. But if the EEOC detects hiring activities that arguably violate Title VII of the Civil Rights Act of 1964 — which bars discrimination based on race, color, religion, sex or national origin — it intends to pursue legal action. In the EEOC's Strategic Enforcement Plan for 2013-2016, it presents a litigation agenda regarding the misuse of criminal background checks.

"Retailers," McCally said, "are in direct target because of their large numbers of hires." The EEOC has indicated it is on the lookout for individual cases that could be broadened to class actions or systemic violations.

Under the new guidelines, arrest inquiries are generally not allowed.

"In most cases, employers cannot consider the arrest record of a job applicant," McCally said.

As the EEOC points out — being arrested does not make one guilty. However, there are exceptions that retailers could use as a defense, such as the underlying behavior that caused the arrest. It must be considered in the context of the events that occurred and how that behavior would impact qualifications for the specific job. An example, according to McCally, would be if the arrest was for sexual misconduct and the job was for a daycare center.

Conviction records must be weighed with caution.

"You cannot say, 'If you have a criminal conviction we won't hire you.' There is no longer a blanket exception," McCally said.

In fact, in the guidelines, the EEOC recommends "that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity."

As a best practice, the EEOC says employers should conduct individualized assessments. Three things to be considered are: the nature and gravity of the offense or conduct, the time that has passed and conduct since the offense, and how it applies to the nature of job sought.

"This gives the individual an opportunity to explain and an opportunity to go deeper into the matter," McCally explained.

McCally advised retailers to stay tuned to their state and local 'Ban the Box' laws, which prohibit conviction questions on applications. Federal legislation has also been introduced in the Congress — H.R. 6220 — to eliminate questions about criminal history on applications.

To stay in accord with the laws, McCally emphasized, "The burden is on you, the employer."